Citation Nr: 1427802
Decision Date: 06/19/14 Archive Date: 06/26/14
DOCKET NO. 10-22 820 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas
THE ISSUE
Entitlement to an increased disability rating for diabetes mellitus in excess of 20 percent.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
E. Blowers, Associate Counsel
INTRODUCTION
The Veteran, who is the appellant, had active service from November 1985 to December 1989, and from March 1999 to April 2001.
This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the RO in Waco, Texas, which denied an increased disability rating for diabetes mellitus in excess of 20 percent. The Board notes that during the pendency of this appeal, in a rating decision dated February 2012, the RO granted separate compensable ratings of 10 percent each for right and left lower extremity peripheral neuropathy related to the service-connected diabetes mellitus, with an effective date of June 21, 2010. To date, no notice of disagreement (NOD) has been received by VA as to the February 2012 decision. In the instant decision, the Board remands the issue on appeal for a new VA examination and to obtain outstanding VA medical records, which includes medical records generated by VA during the one-year appellate period following the February 2012 rating decision. As such records are in the constructive possession of VA and may contain new and material evidence, the Board notes that the February 2012 rating decision may not be final. See 38 C.F.R. § 3.156(b) (2013); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency).
The Board has reviewed the physical claims file and both the Veterans Benefits Management System (VBMS) and the "Virtual VA" files so as to insure a total review of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).
REMAND
VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on his claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R.
§ 3.159(c)(4) (2013). To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).
The Veteran received a VA diabetes mellitus examination in October 2012. Under the diabetes mellitus complications section of the report, the VA examiner recorded that the Veteran's complications included peripheral neuropathy, but did not indicate that the Veteran had diabetic retinopathy. Throughout the course of this appeal, multiple VA medical records, including March and May 2011 VA treatment records, convey that the Veteran was diagnosed with diabetic retinopathy. As the October 2012 VA diabetes mellitus examination does not address the Veteran's previously diagnosed diabetic retinopathy, it is inadequate for compensation purposes.
Under 38 C.F.R. § 4.79, Diagnostic Code 6006 (2013), retinopathy is to be rated on either visual impairment or incapacitating episodes, depending on whichever results in a higher disability rating. While the record reflects that the Veteran has received eye examinations from the VA medical center during the pendency of this appeal, the examinations have not addressed whether the Veteran has suffered from incapacitating episodes; therefore, the Board finds that an additional VA examination is necessary to address whether the previously diagnosed diabetic retinopathy resulted in incapacitating episodes during the period on appeal.
Further, VA should obtain all relevant VA and private clinical documentation which could potentially be helpful in resolving the issue. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran's VA treatment documentation associated with the record ends in April 2012. As the Veteran has received regular treatment for his diabetes mellitus and related disabilities through the VA Medical Center, the AOJ should obtain the Veteran's VA treatment records for the period on and after April 2012.
Accordingly, the case is REMANDED for the following action:
1. Associate with the record all VA clinical documentation pertaining to the treatment of the service-connected diabetes mellitus, including any and all treatment of the Veteran's symptoms and related disabilities, not already of record, for the time period on and after April 2012.
2. Then, schedule the Veteran for the appropriate VA examination(s) in order to assist in determining the current level of severity of the Veteran's previously diagnosed diabetic retinopathy. The relevant documents in the record should be made available to the examiner(s), who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided.
The examiner should evaluate the Veteran's diabetic retinopathy and assess the current severity of the disability. In addition to recording the current level of visual impairment, the examiner should offer an opinion as to whether the disability causes/has caused incapacitating episodes. If the eye disability is found to have caused incapacitating episodes at any time since June 2008, the examiner should offer an opinion as to the total duration of each incapacitating episode.
If the examiner finds that the Veteran does not currently have a diagnosis of diabetic retinopathy, the examiner should explain why such a diagnosis is inappropriate in light of the other medical evidence of record.
3. Then readjudicate the Veteran's claim for an increased disability rating for diabetes mellitus in excess of 20 percent. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
_________________________________________________
J. PARKER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).